The public trial of Justice Roberts

May 23, 2012|Kathleen Parker, Washington Post Writer's Group

WASHINGTON -- Novelist John Grisham could hardly spin a more provocative fiction: The president and his surrogates mount an aggressive campaign to intimidate the chief justice of the United States, implying ruin and ridicule should he fail to vote in a pivotal case according to the ruling political party's wishes.

If only it were fiction.

The justice is of course John Roberts and the case involves the Affordable Care Act (ACA), aka Obamacare, which would be affordable only if the court upholds the individual mandate requiring all Americans to buy health insurance.

The left's narrative goes as follows: If the justices side with the Obama administration, they will be viewed as brilliant and nonpartisan. If the reverse occurs, why then, the justices are partisan, judicial activists who have delegitimized the court.

Writing in The New Republic, Jeffrey Rosen laid it out for Roberts, whose vote likely will be decisive: "In addition to deciding what kind of chief justice he wants to be, he has to decide what kind of legal conservatism he wants to embrace. Of course, if the Roberts court strikes down health care reform by a 5-4 vote, then the chief justice's stated goal of presiding over a less divisive court will be viewed as an irredeemable failure."

Lest there be any lingering confusion, permit me: Vote our way, Justice Roberts, or you will go down in history as having abrogated your duty; your reputation will be destroyed; and the country will hold you accountable not only for withholding health care from the American people, but also for rolling back the New Deal.

In so many words.

Wait, the New Deal? Yes, according to many on the left, including Rosen, if the court rolls back Obamacare, it will also roll back the New Deal. Legal scholars on the right insist otherwise, noting that lawyers for the plaintiffs were explicit in denying any interest in overturning precedents.

I leave this debate to others more worthy, but the idea that decisions must be popular and/or bipartisan is silly on its face. Just because something is popular doesn't make it "right" or legally correct. And, difficult as this is to accept in our Twitter culture, Supreme Court justices needn't be popular.

Nevertheless, the left is pushing many such non-legal arguments, including that the court shouldn't overturn a "popular" legislative act. Even the president advanced this argument as recently as last month, although the ACA is not, in fact, all that popular.

Speaking in the Rose Garden, Obama said: "Ultimately, I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."

Senate Judiciary Chairman Pat Leahy also recently publicly lobbied Roberts, saying he trusts that the chief justice has "a strong institutional sense of the proper role of the judicial branch." And, "it would be extraordinary for the Supreme Court not to defer to Congress in this matter that so clearly affects interstate commerce."

This not-so-stealth campaign to influence the Supreme Court is obnoxious, if not unethical. It is also factually challenged. Overturning a law would not be unprecedented or extraordinary, as any first-year law student could tell you, but don't take my word for it. Harvard University's Laurence Tribe, one of Obama's professors and a leading liberal scholar of constitutional law, said that his former student "obviously misspoke."

It happens. Yet criticizing the Supreme Court is a consistent refrain from Obama, who began his presidency by scolding the justices. During his first State of the Union address, Obama broke decorum by criticizing the justices present for their Citizens United ruling, saying the court had "reversed a century of law that I believe will open the floodgates for special interests -- including foreign corporations -- to spend without limit in our elections."

Talk about extraordinary.

Publicly chastising the court -- and now taunting Roberts specifically -- seems to have two purposes. One is to get under Roberts' skin in hopes that he'll rule the "correct" if not necessarily "legally correct" way. Two is to lay the groundwork for declaring the court illegitimate if all or part of Obamacare is overturned.

Either way, it's politics at its filthiest and is beneath the dignity of the court -- and of the White House. Unfortunately for Roberts, it's up to the chief justice to hold the bar high.